The opinion of the court was delivered by: Rufe, J.
MEMORANDUM OPINION AND ORDER
Petitioner Dedmas Sanchez ("Sanchez") was convicted in this Court on June 6, 2006 for one count of conspiracy to distribute over one kilogram of heroin in violation of 18 U.S.C. § 846, and one count of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924. Now before this Court is Petitioner's pro se Motion requesting a "restructuring" of his prison sentence based on recent Second and Eighth Circuit decisions pertaining to 18 U.S.C. § 924(c).*fn1 For reasons set forth below, Petitioner's Motion is dismissed for lack of jurisdiction.
I. FACTUAL AND PROCEDURAL BACKGROUND
This criminal matter commenced on March 8, 2005, upon return of a grand jury indictment charging Petitioner with conspiracy to distribute more than one kilogram of heroin.*fn2
Shortly after indictment, Petitioner pled guilty to one count of conspiracy to distribute over one kilogram of heroin and one count of possession of a firearm in furtherance of a drug trafficking crime. As part of his plea agreement, Petitioner "voluntarily and expressly waive[d] all rights to appeal or collaterally attack [his] conviction, sentence, or any other matter relating to [the] prosecution."*fn3
On July 18, 2008, the Court issued a Memorandum Opinion*fn4 to address the Petitioner's direct appeal of his sentence to the Third Circuit Court of Appeals. The Court herein recites pertinent parts of said memorandum to establish relevant factual and procedural background:
The charges against Sanchez are based on his involvement in the operation of a large scale, long-standing heroin ring with its hub of criminal activity in the City of Allentown, Pennsylvania. Specifically, Sanchez's role in the criminal enterprise included coordinating the daily narcotics activity of the lower-level workers. During the time that Sanchez was a member of the drug ring, the enterprise distributed approximately one kilogram of heroin per month, which generated approximately 20,000 ten-dollar bags of heroin. Under the federal statutory sentencing provisions, Sanchez faced a minimum term of imprisonment of twenty years regarding the conspiracy count*fn5 and a consecutive mandatory minimum term of five years imprisonment on the firearm count. It was undisputed that Sanchez's total offense level under the Sentencing Guidelines was thirty-six and a Category III Criminal History.*fn6 Based on a total offense level of thirty-six and a Category III Criminal History, the guideline range for imprisonment on the conspiracy count was 235 to 295 months.*fn7 However, because of the statutory provisions referenced above, the range for the conspiracy count increased to 240 to 295 months.*fn8 The term of five years imprisonment imposed under 18 U.S.C. section 924 (c) runs consecutively to any other term of imprisonment. As a result, Sanchez's potential guideline sentence ranged from 300 to 355 months. The Government filed a motion to depart downward from the mandatory minimum sentence pursuant to 18 U.S.C. section 3553 (e) and section 5K.1. of the United States Sentencing Guidelines based on the level of assistance Sanchez provided. After carefully considering the Torres*fn9 factors, the Court granted the Government's motion and sentenced Sanchez to a term of imprisonment of 120 months [followed by five years of supervised release]. The next day, Sanchez filed an appeal, arguing that the Court should have granted a more significant downward departure from the guidelines.
Consistent with Petitioner's plea agreement, however, the Third Circuit enforced Petitioner's appellate waiver and dismissed the direct appeal. *fn10 To date, Petitioner has served approximately forty-two months of his sentence. Now, more than three years after sentencing, Petitioner challenges the length of his prison sentence and requests that this Court "restructure the term of his imprisonment."
In the instant Motion, Petitioner pleads for a "sentence restructure." The Government argues that it is unclear whether Petitioner intends to bring the instant claim under 28 U.S.C. § 2241 or 28 U.S.C. § 2255. The Court, however, holds such no confusion and finds that under either statute, Petitioner improperly attempts to invoke this Court's jurisdiction over a habeas petition. Under § 2241, jurisdiction for a habeas petition challenging present physical custody lies only in the district of confinement.*fn11 Here, Petitioner is confined at FCI Fort Dix, which is located in the District of New Jersey. As the Government notes, this Court would have no subject matter jurisdiction to consider a § 2241 petition.
Under § 2255, a petitioner has one year after the sentence is final or after a direct appeal to file a habeas petition.*fn12 Here, Petitioner brings his petition more than three years after sentencing and the filing of his direct appeal. As such, Petitioner is well beyond the one-year statute of limitations. Moreover, Defendant is precluded from filing a § 2255 petition by the terms of his guilty plea agreement entered into before the Court on June 5, 2006.*fn13
Further, the Court finds no constitutional grounds to consider Petitioner's argument that his sentence should be restructured based on "new case law." Petitioner relies on recent opinions from the Second and Eighth Circuits as articulated in United States v. Whittley*fn14 and United States v. Easter*fn15 to support his position that the consecutive nature of a sentence for the crime of using a firearm in furtherance of a drug trafficking crime does not apply when the defendant is also subject to a higher, but potentially concurrent minimum penalty provided by another statute. Whittley and Easter, however, directly conflict with binding, controlling authority from the Third Circuit ...